Jones v. State

228 P.3d 867

2010 WY 44

Kenneth Ermil JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-08-0281.

Supreme Court of Wyoming.

April 16, 2010.

Representing Appellant: Michael H. Reese of Michael Henry Reese, P.C., Cheyenne, Wyoming.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General. Argument by Ms. Craig.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

GOLDEN, Justice.

¶ 1 Following a jury trial, Kenneth Ermil Jones was convicted of second degree sexual abuse of a child and sentenced to a term of imprisonment of five to fifteen years. Jones challenges his conviction, raising claims regarding the district court's denial of his motion for judgment of acquittal, the sufficiency of the evidence supporting the jury's verdict, and ineffective assistance of trial counsel. We affirm.

ISSUES

¶ 2 Jones presents these issues for our consideration:

I. Trial counsel made a Rule 29 motion at the close of the prosecution's case in chief. The district court denied the Defendant's Rule 29 motion. Did the district court err in denying Appellant's motion for judgment of acquittal?

II. Was there sufficient evidence to sustain a guilty verdict in this case for sexual abuse of a minor?

III. Was there ineffective assistance of counsel for 1) failure to seek a bill of particulars in light of an absence of detail about which conduct constituted sexual abuse and/or 2) failure to submit an Eagan instruction?

FACTS

¶ 3 In September and October of 2007, Jones lived in a mobile home occupied by his girlfriend, LW (hereinafter Mother), and her two young children, RH (age seven) and TH (age six). One morning, Mother returned home early from work and discovered Jones in bed with RH. Mother noticed that Jones' front was pressed against RH's back, in what she described as a "spooning" position. Mother woke Jones, ordered him out of the room, and told him he was not allowed to be in the same bed as her son. However, she again found Jones in bed with RH on another occasion.

¶ 4 Around mid-October, Mother evicted Jones from the mobile home and instructed him to stay away from her and the boys. She also contacted the Wyoming Department of Family Services and the Gillette Police Department. Following an investigation, which included interviews with both RH and Jones, the State charged Jones with one count of sexual abuse of a minor in the second degree under Wyo. Stat. Ann. § 6-2-315(a)(ii) (LexisNexis 2009).¹

¶ 5 At trial, RH testified Jones would crawl into bed with him after his mother left for work, and that both of them would be wearing only their underwear. RH testified that, on those occasions, Jones would place his body against RH's back and his hands on RH's belly. RH also stated there were times he would wake up in his mother's bedroom, lying in bed with Jones. RH further testified Jones occasionally touched him on the parts of his body that his "underwear covers up," both in the "front" and the "back," where nobody is supposed to touch. He stated that when Jones touched him in the back, it was usually when he was in trouble and was getting a spanking. However, when Jones touched him in the front, it was "different" and not when he was in trouble. RH stated Jones' hand would be moving as he touched him in the front.

¶ 6 Detective Rebecca Elger of the Gillette Police Department testified regarding her interview of Jones, which was conducted shortly after Mother reported his behavior with RH to police and the Department of Family Services. According to Detective Elger, Jones admitted to sleeping in the same bed with RH on several occasions and cuddling with him. He reported he felt a void when Mother would go to work and "that he would go and get RH and bring him to the bed and cuddle with him, or he would go to RH's bed and cuddle with him there." Jones revealed he would get an erection when he cuddled with RH, and that he would always push away from RH because he did not want RH to notice his reaction. Jones also acknowledged he may have touched RH's penis as he was helping RH tuck in his shirt, or at times when RH would sit on his lap to do homework, but he insisted it was always accidental.

¶ 7 At the close of the State's case, defense counsel moved for a judgment of acquittal. The district court denied the motion, concluding the State had made a prima facie showing of the necessary elements of the charged crime. Thereafter, the defense rested without presenting any evidence. The jury found Jones guilty of the charged offense, and the district court imposed a prison sentence of five to fifteen years. This appeal followed.

DISCUSSION

Denial of Motion for Judgment of Acquittal

¶ 8 The salient portion of W.R.Cr.P. 29(a) reads as follows:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information or citation after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

When ruling upon a motion for judgment of acquittal, a trial court is called upon to determine, as a matter of law, whether in its opinion there is sufficient evidence to sustain the charge. On review of the denial of a motion for judgment of acquittal, this Court has the same duty. Montez v. State, 2009 WY 17, ¶ 18, 201 P.3d 434, 440 (Wyo.2009). We recently reiterated the principles governing a judgment of acquittal motion:

The district court must assume the truth of the evidence of the State and give to the State the benefit of all legitimate inferences to be drawn from that evidence. If a prima facie case is demonstrated when the evidence is so examined, the motion for judgment of acquittal properly is denied. It is proper to grant a motion for judgment of acquittal only if there is no substantial evidence to sustain the material allegations relating to the offense that is charged. Such a result is indicated if the evidence requires the jury to speculate or conjecture as to the defendant's guilt or if a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime when the evidence is viewed in the light most favorable to the State.

Martinez v. State, 2009 WY 6, ¶ 11, 199 P.3d 526, 530 (Wyo.2009) (internal citations omitted).

¶ 9 Jones disagreement with the district court's denial of his motion for judgment of acquittal primarily rests on his contention that the district court should have considered the rule articulated in Eagan v. State, 58 Wyo. 167, 128 P.2d 215 (1942) and the corpus delicti rule in evaluating the adequacy of the State's evidence. We reject Jones' contention of error for several reasons.

¶ 10 First, Jones' reliance on the Eagan rule is misplaced. That rule states:

Where an accused is the sole witness of a transaction charged as a crime, ... his testimony cannot be arbitrarily rejected, and if his credibility has not been impeached, and his testimony is not improbable, and is not inconsistent with the facts and circumstances shown, but is reasonably consistent therewith, then his testimony should be accepted.

Eagan, 58 Wyo. at 198, 128 P.2d at 226. As indicated, the Eagan rule applies only to testimony by the accused. Cheatham v. State, 719 P.2d 612, 623 (Wyo.1986); Cutbirth v. State, 663 P.2d 888, 890 (Wyo.1983). In this case, Jones did not testify and, therefore, there was no testimony given by him that the district court, or for that matter the jury, could accept or reject. Even if we were to consider the testimony of Detective Elger relating Jones' statements as his testimony, it is clear Jones was not the sole witness to the criminal event, as the rule mandates. Leeper v. State, 589 P.2d 379, 382 (Wyo. 1979). RH testified about his contact with Jones. Mother also testified about certain relevant facts, which corroborated parts of RH's testimony. Given the circumstances, we are satisfied the Eagan rule is inapplicable and provides Jones no relief.

¶ 11 Second, Jones' argument regarding the corpus delicti rule is likewise flawed. While Jones is correct that independent proof of the corpus delicti must exist apart from a defendant's extrajudicial confession or admission, Simmers v. State, 943 P.2d 1189, 1199 (Wyo.1997); Kolb v. State, 930 P.2d 1238, 1248 (Wyo.1996); Betzle v. State, 847 P.2d 1010, 1021-22 (Wyo.1993); Konopisos v. State, 26 Wyo. 350, 354-55, 185 P. 355, 356 (Wyo.1919), he is incorrect in his assertion that insufficient evidence existed outside the statement he gave to Detective Elger. In Simmers, we identified the sort of corroborating evidence that must exist in order to prove the commission of a crime:

The corroborating evidence need only consist of substantial evidence that the offense has been committed, so that the evidence as a whole proves beyond a reasonable doubt that the defendant is guilty of the crime charged.

Corroborating evidence is adequate if it supports the essential facts admitted sufficiently to justify a jury inference of the truth of the confession. The quantity and type of independent corroborating evidence depends upon the facts of each case. However, circumstantial evidence can be used to corroborate a confession.

Simmers, 943 P.2d at 1199 (quoting United States v. Clark, 57 F.3d 973, 976 (10th Cir. 1995)) (internal citations and quotation marks omitted).

¶ 12 Here, evidence of Jones' wrongdoing was presented through avenues other than the statement he gave to Detective Elger—most prominently, the testimony of the victim. RH testified Jones would get into bed with him wearing only his underwear and, at times, he would sleep in his mother's bed when only Jones was there. He also testified Jones would touch him on that area of the front of his body that his underwear...